Parliament Attack Case: Some Thoughts on the High Court
Judgement

Uma Chakravarti
Neeraj Malik
Nandita Narain

The recent High Court judgement in the December 13 Parliament
Attack Case acquitting SAR Gilani and Afsan Guru of all charges (reversing the
earlier judgement of the Special Trial Court that pronounced the death penalty
on Gilani and 5 years R.I. on Afsan Guru) received a mixed reception in the
press. It was the occasion for introspection by some on the role of the media
(Editorial, The Hindustan Times, 31 October 2003), and vicious attacks by
others who tauntingly told civil rights activists that welcomed the judgement to
‘go home’ to Pakistan (The Pioneer, 31 October 2003). For almost two
years, the country’s first case under POTA has been used by the state, the
press and even the judiciary as ‘our challenge’ to the ‘threat to
democracy’, and as an instrument to evoke and define nationalism in India
today. Yet, the High Court judgement compels a closer look, both for what it
says and for the implications of what it does not say for a fair system of
justice for all Indians.

Why were Gilani and Afsan acquitted? Because the High Court
decisively rejected the sole piece of ‘evidence’ produced by the prosecution
against Gilani holding that it did not even ‘remotely, far less definitively
and unerringly’, point to Gilani being party to the conspiracy (High Court
judgement, para. 412). Similarly, the prosecution’s imputation of knowledge of
the conspiracy on Afsan’s part, was rejected by the HC since no cogent or firm
inference of guilt had been established by the prosecution against her (para.
420).

If this is so, why were Gilani and Afsan arrested in the
first place, charged under POTA and incarcerated for almost two years when there
was no real evidence against them? They did not belong to any banned
organization, no incriminating evidence was found against them and they did not
make any confessional statement. What is becoming clear after the pronouncement
of the HC is that without the use of POTA the state would not have been able to
keep them in jail or deny them bail. But what is striking is that even under
POTA, a law widely debated for the manner in which it fails to secure the rights
of the accused, the police had no case at all against them, as the HC acquittal
clearly acknowledges.

Another important aspect of the HC judgement are the
questions it raises about the functioning of the police with respect to the
arrest memos of Gilani and Afsan, implying that they were fabricated. The Court
held that the prosecution ‘stands discredited as to the time of arrest’ and
admits that it was probable that Gilani’s brother was in ‘illegal
confinement and forced to sign papers’ (para. 251). These points of the
judgement are seriously damaging to the prosecution. A second aspect of the
judgement is that it is severely critical of the police for ‘brazenly parading’
the accused, an action that vitiates the criteria required for the
identification parade (para. 139). The judges held that the police ‘misused’
the court’s grant of police custody, meant to enable investigation. However,
despite clearly identifying such serious miscarriage of justice, the High Court
stopped short of passing strictures on the police.

With the police discredited on at least two counts, and with
no evidence against Gilani, what is even more striking is that the trial court
had nevertheless awarded him two death sentences and Afsan 5 years RI. Had the
HC judgement made a mention of the rather over-adventurous judgement delivered
by the Special Trial Court, not based even on the minimum standards of justice,
it would have served as a guiding principle in future cases.

Why are strictures against faulty prosecution and miscarriage
of justice important? Because they draw attention to the basic requirements of
the rule of law. It is a way of serving justice by acknowledging the wrong done
to the victims of wrongful arrest and confinement, and it becomes the basis for
reparations. It restores faith in the judicial system. Unfortunately, this
acknowledgement too is missing in the HC judgement. Further, strictures are
important to ensure the accountability of those who occupy public offices so
that they do not misuse the powers vested in them; they also send a message to
those who might consider violating the rule of law in the future. While this is
so for all cases under the normal legal system, it becomes even more imperative
when a draconian law like POTA is invoked.

Immense injury has also been done to Gilani and Afsan by
sections of the media that virtually conducted their own public trial and
declared them guilty even before their trial began. An irresponsible and
unverified report was published that Gilani had bought a house in Delhi (The
Hindustan Times, 17 December 2001), imputing he was flush with funds from
dubious sources. A film repeatedly aired in December 2002 on Zee TV presented,
in a documentary form the prosecution version as "factual",
representing the accused as dreaded terrorists, guilty without doubt. And while
there was no evidence that Afsan knew about the conspiracy to attack the
Parliament, she was held responsible for the loss of 14 lives – not just the 9
policemen, but also the 5 terrorists who were killed in the attack on the
Parliament (Special Trial Court judgement, para 263).

Armed with POTA, the legal system and the media have
inflicted great harm on all the accused, working jointly to create bias and
repugnance amongst the ordinary public. Consequently, the situation remains
unchanged even for those acquitted. Gilani’s family has found it virtually
impossible to find housing, the children were denied schooling, and indeed their
very childhood, as, in the vitiated atmosphere, they were shunned even by
children in their neighbourhood. Afsan’s experiences have been both physically
and psychologically traumatic. Beginning with the violence of the arrest and
interrogation during her pregnancy, humiliation by the officials in court and
jail, repeated bouts of illness and the delivery of a child – she has been
subjected to so much stress that though acquitted, her future as that of her
infant child remains fragile. Could it be that she has been specially targeted
because she is regarded as having transgressed boundaries by marrying outside
her community? The trial court judgement that convicted her suggested as much by
holding that she violated her ‘constitutional obligation to uphold the
sovereignty of India and her ‘duties towards the state’ by placing her
husband before the nation (Special Trial Court judgement, paras. 262-263).

Both Gilani and Afsan face continued tribulations. Their
security is not guaranteed, and as people with a public history it is doubtful
whether they will ever be able to get on with their lives. Who will take
responsibility for the irreparable damage done to them?